from the United States Court of Federal Claims in No.
1:16-cv-00138-MBH, Judge Marian Blank Horn.
Diaz, Boston, MA, pro se.
Vicks, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, DC, for
defendant-appellee. Also represented by Benjamin C. Mizer,
Robert E. Kirschman, Jr., Douglas K. Mickle.
Wallach, Chen, and Stoll, Circuit Judges.
Wallach, Circuit Judge.
Kevin Diaz submitted an unsolicited proposal to the U.S.
Department of the Navy's ("Navy") Indian Head
Explosive Ordnance Disposal Technology Division
("IHEODTD") pursuant to 48 C.F.R. (Federal
Acquisition Regulation ("FAR")) Subpart 15.6
(2015). A contracting officer from the IHEODTD conducted an
initial review of Mr. Diaz's proposal and determined that
it did not satisfy the requirements of FAR 15.606-1, a
decision that the Contracting Officer affirmed when Mr. Diaz
Diaz filed a complaint in the U.S. Court of Federal Claims
challenging the Contracting Officer's rejection of his
unsolicited proposal. Appellee the United States ("the
Government") moved to dismiss. The Court of Federal
Claims granted the Government's motion and dismissed Mr.
Diaz's Complaint for, inter alia, lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) of the
Rules of the Court of Federal Claims ("RCFC")
because he lacked standing under 28 U.S.C. § 1491(b)(1)
(2012). See Diaz v. United States, 127 Fed.Cl. 664,
Diaz appeals. We have jurisdiction pursuant to 28 U.S.C.
§ 1295(a)(3). We affirm.
Standard of Review and Legal Standards
review a Court of Federal Claims decision to dismiss for lack
of jurisdiction de novo. Res. Conservation Grp.,
LLC v. United States, 597 F.3d 1238, 1242 (Fed. Cir.
2010). The plaintiff bears the burden of establishing
jurisdiction by a preponderance of the evidence. Brandt
v. United States, 710 F.3d 1369, 1373 (Fed. Cir. 2013).
Court of Federal Claims's jurisdiction over bid protest
disputes is articulated in § 1491(b)(1). It provides
that the Court of Federal Claims has jurisdiction to
adjudicate an "action by an interested party objecting
to a solicitation by a Federal agency for bids or proposals
for a proposed contract or to a proposed award or the award
of a contract or any alleged violation of statute or
regulation in connection with a procurement or a proposed
procurement." Id. Section 1491(b)(1) includes
three related requirements that are pertinent to the
jurisdictional inquiry in this case, with the first
addressing the Court of Federal Claims's subject matter
jurisdiction and the second and third addressing standing.
subject matter jurisdiction under § 1491(b)(1) may be
established for a "violation of a statute or regulation
in connection with a procurement or a proposed
procurement." RAMCOR Servs. Grp., Inc. v. United
States, 185 F.3d 1286, 1289 (Fed. Cir. 1999). The phrase
"in connection with" is "very sweeping in
scope" and "includes all stages of the process of
acquiring property or services, beginning with the process
for determining a need for property or services and ending
with contract completion and closeout." Distributed
Sols., Inc. v. United States, 539 F.3d 1340, 1345 (Fed.
Cir. 2008) (internal quotation marks, emphasis, and citations
omitted). Under the circumstances here, Mr. Diaz's
allegation that the Contracting Officer improperly rejected
his unsolicited proposal pursuant to FAR 15.606-1 constitutes
a non-frivolous allegation of a violation of a regulation in
connection with a proposed procurement and, thus, is
sufficient to meet the "in connection with"
requirement of the statute. See id. at 1345 n.1
("A non-frivolous allegation of a statutory or
regulatory violation in connection with a procurement or
proposed procurement is sufficient to establish
jurisdiction."). Mr. Diaz's proposal qualifies as a
"proposed procurement" that was reviewed by the
Government, as indicated in the record by Mr. Diaz's
receipt of a significant number of emails from government
personnel regarding the status of his proposal, see
Resp't's App. at 88-154, and the Contracting
Officer's "careful and specific" review of, and
response to, the proposal, Diaz, 127 Fed.Cl. at 675.
second and third of the three requirements of §
1491(b)(1) that are pertinent to the jurisdictional inquiry
relate to a party's standing to file a bid protest.
See, e.g., Myers Investigative & Sec.
Servs., Inc. v. United States, 275 F.3d 1366, 1369 (Fed.
Cir. 2002). A party seeking to establish jurisdiction under
§ 1491(b)(1) must show that it meets §
1491(b)(1)'s standing requirements, which are "more
stringent" than the standing requirements imposed by
Article III of the Constitution. Weeks Marine, Inc. v.
United States, 575 F.3d 1352, 1359 (Fed. Cir. 2009). To
meet these more stringent requirements, a plaintiff must make
two separate showings. The party first must show that it is
an "interested party." Digitalis Educ. Sols.,
Inc. v. United States, 664 F.3d 1380, 1384 (Fed. Cir.
2012). To satisfy the interested party requirement, "a
party must show that it [(1)] is . . . an actual or
prospective bidder and [(2)] . . . has a direct economic